The Supreme Court is primarily a court of appeal and has extensive appellate jurisdiction. Its primary function is to interpret the Constitution and declare whether or not any legislation or administrative action is unconstitutional. The Supreme Court is the final arbiter in all constitutional controversies. The law declared by the Supreme Court is binding on all courts in India and is the law of the land.
This power is extremely wide and enables the Supreme Court to act as a check against improper exercise of jurisdiction by judicial or quasi judicial bodies as well as maintain uniformity of legal approach.
Supreme Court since independence has given many landmark judgments which have an impact on the progress of the nation.
Hereby, we are analyzing these judgments under two series. In the first series we are covering following articles:
In a modern nation state, judiciary plays an important role of interpreting and applying the law. In a country with within constitution, the judiciary upholds the supremacy of constitutional provisions. In India, within the framework of supremacy of the constitution, parliamentary democracy and a federal set up, the judicial system is unitary in nature and presents a single integrated system of courts for the union and the states which administer both union and state laws. The Indian judiciary is like a pyramid in structure at the top of which is the Supreme Court of India. Below the Supreme Court stand High Courts of different states and below the High Court there is a hierarchy of subordinate courts. These subordinate courts are subordinate to and controlled by the High Courts.
Jurisdiction of the Supreme Court
The scope of powers of Supreme Court to hear and decide cases is called its jurisdiction. The Supreme Court has three types of jurisdictions namely original, appellate and advisory. Let us now examine the three jurisdictions.
There are certain cases which fall within the exclusive jurisdiction of the Supreme Court. It means that all such cases begin or originate in the Supreme Court, only. It also means that such cases cannot be initiated in any other court. The cases or disputes that come under the original jurisdiction are given below:
(i) (a) Disputes between the Government of India on the one side and one or more States on the other side.
(b) Disputes between the Government of India and one or more States on one side and one or more States on the other side.
(c) Disputes between two or more States.
(ii) The Supreme Court has been invested with special powers in the enforcement of Fundamental Rights. In this connection, it has the power to issue directions or writs.
(iii) Cases under Public Interests Litigation (PIL) can also be heard directly. (This is an extra Constitutional practice; there is no mention of PIL in the Constitution).
The power of a superior/higher court to hear and decide appeals against the judgment of a lower court is called appellate jurisdiction. The Supreme Court has vast appellate jurisdiction. It hears appeals against the judgment of the High Courts. Thus, it is the highest and the final Court of Appeal. If one of the parties to a dispute is not satisfied with the decision of the High Court, one can go to the Supreme Court and file an appeal. The appeals can be filled in Civil, Criminal and Constitutional cases.
This power implies Court’s right to give advice, if sought. Under advisory jurisdiction, the President of India may refer any question of law or public importance to Supreme Court for its advice. But the Supreme Court is not bound to give advice. In case, the advice or the opinion of the Court is sent to the President, he may or may not accept it. The advice of the Court is not binding on the President. So far, whenever the Court has given its advice, the President has always accepted it. The Court refused to give its advice on the question whether a temple existed at the spot, where Babri Masjid was built at Ayodhya.
The Supreme Court is primarily a court of appeal and has extensive appellate jurisdiction. Its primary function is to interpret the Constitution and declare whether or not any legislation or administrative action is unconstitutional. The Supreme Court is the final arbiter in all constitutional controversies. The law declared by the Supreme Court is binding on all courts in India, and is the law of the land.
This power is extremely wide and enables the Supreme Court to act as a check against improper exercise of jurisdiction by judicial or quasi-judicial bodies as well as maintain a uniformity of legal approach.
Supreme Court since independence has given many landmark judgments which have impact on the progress of the nation.
In the other files hereby, discussing the different landmark judgments.
Euthanasia is the practice of ending the life of a person in a painless way. It is also known also as mercy killing or assisted suicide, it is usually practiced on a terminally ill person. Euthanasia may be legal or illegal, depending upon a country’s jurisdiction. For example, euthanasia is legal in countries like Belgium, Norway, Sweden and Albania, under the condition that the patient is suffering from chronic pain along with an incurable disease. In the United States, euthanasia is illegal; whatever may be the condition of the patient.
Concept of Right to Life under Indian Constitution
“The Article 21 reads as follows: No person shall be deprived of his life or personal liberty except according to procedure established by law”.
According to this article Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. The object of the fundamental right under Article 21 is to prevent any restriction by the State to a person upon his personal liberty and deprivation of life except according to procedure established by law.
In P. Rathinam vs. Union of India, the court observed “Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality”.
In India, this issue again came to limelight during Aruna Shahbaug case where friends and relatives of an ex-nurse who was in vegetative state from 40 years requested the Supreme Court to grant permission to end her misery by invoking euthanasia. However, whether is it appropriate to bring the life of an individual to end is right or not is still debated. It has its own debates both in favour of and against the process.
The Judgment in Aruna Shahbaug case
The Supreme Court of India laid down guidelines for euthanasia and made a distinction between ‘active’ and ‘passive’ euthanasia. It said that causing the death of a person who is in a permanent vegetative state, with no chance of recovery, by withdrawing artificial life support is not a “positive act of killing”, which could be permitted on a case-by-case basis.
“The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate life. The latter would be euthanasia, a criminal offense under the present law in UK, USA and India.”
The court also laid down guidelines for passive euthanasia such as that the matter must be referred to the High Court for a decision and that the doctor, or the parents or spouse of the patient must be the ones to petition for the withdrawal of life-support. In the absence of any of these, a person or a body of persons acting as ‘next friend’ can be permitted.
Whilst the Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate.
Ethical Issues in Aruna’s case
Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficence.
1. Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous the patient should be competent to make decisions and choices.
2. Beneficence is acting in what is (or judged to be) in patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations.
However in the present case, as no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining treatments for a permanent vegetative state, any decision regarding her treatment will have to be taken by a surrogate i.e. the staff of the KEM hospital have looked after her for 37 years. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that life sustaining treatments should continue, their decision should be respected.
Argument in Support of Euthanasia
· Right to dignified death: The right of a competent, terminally ill person to avoid excruciating pain and embrace a timely and dignified death. The exercise of this right is as central to personal autonomy and bodily integrity.
• Right to get relief from excruciating pain: Right guaranteed in the European Declaration of Human Rights provides the right not to be forced to suffer. It should be considered as much of a crime to make someone live who with justification does not wish to continue as it is to take life without consent.”
• Health care spending: Given the cost of health care expenditure, the expensive palliative care becomes a huge burden for the family members. That too when the chance of survival is meager.
Argument against Euthanasia
• Right to live does not entail Right to death: The Supreme court in Gian Kaur case made it all clear that “right to die” with dignity at the end of life is not to be confused or equated with the right to die an unnatural death curtailing the natural span of life.
• Inhumane and cruel: When the patient is in a terminally ill condition the aforesaid acts or series of acts and/or such omissions will be cruel, inhuman and intolerable (especially when s/he is not in a stable mental state to give correct opinion or will give an emotionally charged opinion .In both the cases it will lead to injustice).
• Illegal: Withdrawing/withholding of hydration/food/medical support to a patient is unknown to Indian law and is contrary to law.
• Nature of Human society: Indian society is emotional and care-oriented. These kind of decisions are against Indian culture.
• Chances of Misuse: Again there was a great danger in permitting euthanasia that the relatives of a person may conspire with doctors and get him killed to inherit his property.
• Promising medical technology: The chances of a medical cure cannot be ruled out. Over time , medical science has evolved to find cure to so called incurable diseases (even AIDS). Hence even if there is a slightest chance of cure, the person should not be deprived of his/her life.
• Voluntary and non-voluntary Euthanasia: Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems.
Through the above judgment, The Supreme court not only showed a middle ground for the long standing debate of “Euthanasia”, but also directed the government to abolish obsolete and inconsistent laws like sec 309 of IPC (which criminalizes and punishes the person attempting suicide). Moreover, ethical questions like right to dignified death and euthanasia are difficult to be wholly addressed by the strict statutes of law. It needs a larger social conscience to arrive at a solution, which will reflect the ethical maturity and sensitivity of the society as a whole.
India is a Socialist, Secular, Democratic Republic and the largest democracy in the World. The modern Indian nation state came into existence on 15th of August 1947. Since then free and fair elections have been held at regular intervals as per the principles enshrined in the Constitution, Electoral Laws and System.
The ‘Fair’ denotes equal opportunity to all people. Universal adult suffrage conferred on the citizens of India by the Constitution has made it possible for these millions of individual voters to go to the polls and thus participate in the governance of our country.
The Constitution of India has vested in the Election Commission of India the superintendence, direction and control of the entire process for conduct of elections to Parliament and Legislature of every State and to the offices of President and Vice-President of India.
But the election at present are not being hold in ideal conditions because of the enormous amount of money required to be spent and large muscle power needed for winning the elections. The major defects which come in the path of electoral system in India are: money power, muscle power, criminalisation of politics, poll violence, booth capturing, communalism, castism, non-serious and independent candidates, etc.
For democracy to survive, it is essential that the best available men should be chosen as people’s representatives for proper governance of the country. This can be best achieved through men of high moral and ethical values, who win the elections on a positive vote. But these days almost all candidates standing in elections are not upto to the expectations of people.
So the Supreme Court, in v. , upheld the constitutional right of citizens to cast a negative vote in elections.
In , the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. Both sides agreed on the fact that the combined effect of these rules was that persons who did not vote in elections (by the presiding officer) as having not voted.
Meaning of Rules 41(2) 41(3) & 49 (O) of Conduct of Election Rules 1961
Rule 41. Spoilt and returned ballot papers:
Rule 41 (2): If an elector after obtaining a ballot paper decides not to use it, he shall return it to the presiding officer, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked as "Returned: cancelled" by the presiding officer.
Rule 41(3): All ballot papers cancelled under sub-rule (1) or sub-rule(2) shall be kept in a separate packet.
49-O. Elector deciding not to vote: If an elector, after his electoral roll number has been duly entered in the register of voters in Form 17A and has put his signature or thumb impression thereon as required under sub-rule (1) of rule 49L, decide not to record his vote, a remark to this effect shall be made against the said entry in Form 17A by the presiding officer and the signature or thumb impression of the elector shall be obtained against such remark.”
Form 17-A: Rule 49-O provides that if an elector, after his electoral roll number has been entered in the register of electors in Form 17-A, decides not to record his vote on the EVM, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and signature/thumb impression of the elector shall be obtained against such remark.
The petitioners argued that this was a violation of the right to secret balloting, protected by Articles 19(1)(a) and 21 of the Constitution.
The Court then found that in a system of direct elections, secrecy was essential in order to ensure the effectiveness of the vote – that is, elections could not be free and fair unless secrecy was maintained (that much is logical; naturally, the only way of preventing bribery, coercion and post-election reprisals is secrecy).
Further, since the freedom to vote naturally included the freedom to vote, it would be arbitrary to extend secrecy to one and not the other. The apex court said the right to vote and the right to say NOTA are both part of basic right of voters.
In addition, the act of not voting was as much a exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection.
The two main key components that came out of the Supreme Court judgment are:
· Right to vote also includes a right not to vote i.e. right to reject. Right to reject implies that a voter while voting has every right not to opt for any of the candidates during an election. Such a right implies a choice to remain neutral .This may happen when a voter feels that none of the candidate in a candidacy deserves to be elected. It happens by the way of his choice, belief, thinking and expression. Right to reject has its genus in freedom of speech and expression.
· Right to secrecy is an integral part of a free and fair election. It is a central right of an elector to cast his vote without fear of reprisal, duress or coercion as per Article 21 of the Indian Constitution. Protection of elector’s identity and affording secrecy is therefore integral to free and fair elections and an arbitrary distinction between the voter who casts his vote and the voter who does not cast his vote is violative of Article 14, Article 19(1)(a) and Article 21 of the Indian Constitution. Secrecy of the voters is necessary in order to maintain the purity of the electoral system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted in direct elections to Lok Sabha or State Legislatures, maintenance of secrecy is a must and is insisted upon all over the world in democracies where direct elections are involved to ensure that a voter casts his vote without any fear of being victimized if his vote is disclosed.
The judgment of the Hon’ble Supreme Court in this case is significant not only because it introduced the option of NOTA on the EVMs but also because it dignified the right to vote.
By declaring that right to vote is essentially a right to free expression, they brought this right under the purview of fundamental rights. Furthermore, the court also declared that the right to vote included the right not to vote.
Negative features in NOTA:
As per the provisions of clause (a) of Rule 64 of Conduct of Elections Rules, 1961, read with Section 65 of the Representation of the People Act, 1951, the candidate who has polled the largest number of valid votes is to be declared elected by the Returning Officer. NOTA do not mean rejection. That may sound self-defeating to the whole point of NOTA but according to Indian democracy the rule of first past the post is declared the winner. Thus, if out of total 10,000 votes, 9999 voters elect NOTA option and just one candidate gets even a single vote, then the latter wins from that constituency.
There has been a debate for re-election to be held in case the total number of NOTA votes crosses a certain percentage. However, this has no legal standing currently and hence NOTA is merely cosmetic in nature.
NOTA can only work only when it is paired with Right To Recall option where voters can recall candidates they have elected. This will instill fear in candidates to do well in office and also lead to giving NOTA importance because it acts as a pre-cursor to public displeasure. Currently, Right To Recall does not exist in the electoral process in the country, which only weakens NOTA.
Recommendations for improving NOTA
According to Association for Democratic Reforms (ADR) and National Election Watch (NEW) following provisions has been recommended with respect to the counting of votes as registered against the NOTA in a particular constituency:-
a) Votes cast for the ‘none-of-the-above’ option should also be counted.
b) In case the ‘none-of-the-above’ option gets more votes than any of the candidates, none of the candidates should be declared elected and a fresh election held in which none of the candidates in this election are allowed to contest.
c) In the following elections, with fresh candidates and with a ‘none-of-the above’ option, only that candidate should be declared elected who gets at least 50 percent + one of the votes cast.
d) If even in this round, the ‘none-of-the above’ option gets the highest number of votes cast or none of the candidate gets at least 50 percent + one of the votes cast, then the process should be repeated.
This may appear to be a cumbersome and tedious process but it will nudge the entire system in the direction of (a) better representativeness among the elected representatives by reducing the sectarian effects of vote banks, and (b) encouraging political parties to put up better candidates.
According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. Whereas the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance hence the provision of amendments were given in Article 368.
The Keshavananda Bharti case depicts the tussle between Articles 13(2) and 368.
The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government. It is popularly known as fundamental rights case. Under this case Supreme Court of India outlined the Basic Structure doctrine of the Constitution and it can be regarded as a second sitting of 'Constituent Assembly'. The fundamental question dealt in Kesavananda Bharati v State of Kerala is whether the power to amend the constitution is an unlimited, or there is identifiable parameters regarding powers to amend the constitution.
In order to understand the famous case of Kesavananda Bharathi, one must trace through the basics, events and cases which led to the historic decision.
The Bihar Land Reforms Act, 1950 which was in contravention of then fundamental Right to Property (Article 31). It was hit by 13(3) as it was infringing Article 31 (Part III, Fundamental Rights). The Act was challenged in High Court which held the act to be unconstitutional for being violative of Article 14 of the Constitution.
Thus in order to protect and validate zamindari abolition laws, the Government made First Amendment of the Constitution of India which made several changes to the Fundamental Rights provisions of the constitution. Article 31-A and 31 B was also added. Ninth Schedule was inserted which protects any legislation inserted within the schedule, from judicial review.
Hence the buildup to Kesavananda was marked by a series of cases and decisions that set the stage for the case itself. At the core of all these cases was the basic question: Was Parliament's power to amend the Constitution unlimited, since it represented the will of the people and its majority, or was that power circumscribed when it came to certain fundamental rights of the people?
Series of cases prior to Kesavananda Bharti case are following.
1) Shankari Prasad vs. Union of India (1951)
The constitutional validity of first amendment (1951), which curtailed the right to property, was challenged. The SC ruled out that the power to amend the Constitution under Article 368 also included the power to amend fundamental rights and that the word "law" in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
2) Sajjan Singh V. State of Rajasthan (1965)
The validity of the 17th Amendment Act, 1964 (which changed the definition of an "estate" given in article 31A of the Constitution so as to include therein lands held under ryotwari settlement in addition to other lands in respect of which provisions are normally made in land reform enactments. The Amendment also added 44 additional State enactments relating to land reforms to the Ninth Schedule to the Constitution in order to secure their constitutional validity and prevent them from being challenged before the judiciary on the ground that they are inconsistent with any of the provisions of Part III of the Constitution relating to Fundamental Rights. This was challenged on the ground that one of the acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 368.
Supreme Court approved the judgment in Shankari Prasad case and held that on Article 13 (2) the case was rightly decided. Amendment includes amendment to all provisions of the Constitution.
3) Golaknath V. State of Punjab (1967)
The Hon'ble Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend Part III of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, the Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void. Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed. Article 368 does not contain a power to amend the constitution but only a procedure.
To nullify the Golaknath verdict, Parliament enacted the 24th Amendment to the Constitution, laying down that its powers to amend the Constitution were unrestricted and unlimited. Finally all the issues related to it was challenged in Keshavanand Case.
The Kesavananda case (1973)
Under this Supreme Court declared 31 C as unconstitutional and invalid on the ground that judicial review is basic structure and hence cannot be taken away.
The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th amendments.
Thus, the Supreme Court laid down the Basic Structure Doctrine in this case.
Basic structure includes:
· Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive and the judiciary
• Federal character of the Constitution
• The mandate to build a welfare state
• Unity and integrity of the nation
• Sovereignty of India
• Democratic character of the polity
• Unity of the country
• Essential features of the individual freedoms secured to the citizens
• Mandate to build a welfare state
Ambiguity of the Judgment
Kesavananda Bharati actually left an ambigious historical legacy.
• It said that Parliament could not interfere with the basic structure of the Constitution, but left open the question of what constituted "basic structure". As to what are these basic features, the debate still continues.
• The judgment also refused to consider the right to property as a fundamental right that was covered by the 'basic structure' doctrine. Despite that, the right to private property, is more solid today, and yet not absolute, as it should be in a market economy.
• This judgment ruled that Article 368 does not enable Parliament in its constituent capacity to delegate its function of amending the Constitution to another legislature or to itself in its ordinary legislative capacity.
• The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.
• The most significant contribution by Kesavananda Bharati judgment is the recognition of supremacy of the Constitution of India and its unalterable features.
• The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted.
This case upheld the changes in 24th amendment in Article 368 and Article 13 of Indian Constitution by overruling Golaknath Judgment. It determined the fabric of Indian constitution which is still relevant and serving as Fundamental Rights case.
India is a religiously diverse country with all the major religions of the world finding place in this land. At the same time it has also faced the scar of partition which many believe was because of anxieties and apprehensions of a particular religious community. Keeping these issues in mind the framers of Indian Constitution provided right to equality, freedom of religion and later in 1976 through 42nd Amendment Act India was declared a secular, democratic, republic.
Our constitutional forefathers were also aware of the fact in spite of so much diversity in the country there is a need to build social cohesion in the Indian society, need to ensure that progressive ideas are not thwarted on the altar of freedom of religion.
Therefore right to equality, freedom of religion and the reasonable restriction, secularism and Uniform Civil Code concepts were provided for progressive, egalitarian and equal society where state would be empowered to determine the relationship between human beings and the relationship of human with God is left on the discretion of the individual.
The issue of Uniform Civil Code came up in Shah Bano case.
About the Shah Bano case
The Shah Bano case of 1985 was a test case of all the above principles. In this case Shah Bano, a Muslim women and wife of Mohammad Ahmad Khan filed a petition at a local court in Indore, against her husband under section 125 of the Code of Criminal Procedure, asking him for a maintenance amount for herself and her children.
Husband gave an irrevocable talaq (divorce) to her which was his prerogative under Islamic law and took up the defence that since Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her as except prescribed under the Islamic law which was in total Rs. 5400. The issue was finally taken up by Supreme Court and it decided it in favour of Shah Bano using secular Criminal Procedure Code regardless of religion.
Shah Bano case was landmark case for many reasons:
• It showed the aspirational and progressive character of Muslim women and other sections of Muslim society, who were ready to challenge the religious orthodoxy.
• It brought into focus the plight of the Muslim women, the discrimination they has to face in matters related to marriage.
• It showed that the laws of the land which are secular in character will take precedence over the religiously ordained customs and personal laws.
• It was triumph of the principle of social justice.
• It was a step in the direction of implementation of UCC and
• Most important of all it raised a debate about the rights of women, application of principle of equality. The debate engulfed civil society, religious groups, legislature and common man and nothing can be more fruitful in a democracy than a debate.
In 1986, the Parliament of India passed an act titled The Muslim Women (Protection of Rights on Divorce) Act, 1986, that nullified the Supreme Court's judgment in the Shah Bano judgment. Diluting the Supreme Court judgment, the act allowed maintenance to a divorced woman only during the period of iddat, or till 90 days after the divorce, according to the provisions of Islamic law. When the judgment was overturned by Parliament it showed:
• That political populism still dominates over rational principles based on equality, human rights and social justice. It showed that it was not only the sentiments of religious minorities but the absence of political will also that prevents the implementation of UCC.
• The judgment has left a bitter legacy, which prevents further reforms on UCC because of fear of political backlash.
Conflict between secularism, UCC and freedom of religion
The case brought into focus issue of conflict between secularism, UCC and freedom of religion. During the proceedings of case the Islamic groups sighted the judgment as an instance of attack on their religious freedom and their right to their own personal religious laws. Secularism as a principle with western interpretation -'non-interference by the state in religious matters' - was used to mobilize support against the judgment.
It raised the question whether secularism, freedom of religion are in conflict with UCC?
When the Preamble of Indian Constitution declares India a 'secular' state it means that state is only concerned with the relation of man with fellow man, man with state and not of man with God. He is free to choose his own God, practice the principles of the religion. The Indian doctrine of secularism does not mean absolute non-interference but principled distance from the religion. Thus implementation of Article 44 is under the provision of secularism.
Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Marriage, succession and like matters are of secular nature and, therefore, law can regulate them.
The whole debate can be summed up by the judgment given by Justice R.M. Sahai. He said,
"Ours is a secular democratic republic. Freedom of religion is the core of our culture. Even the slightest of deviation shakes the social fibre. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms are not autonomy but oppression. Therefore, a unified code is imperative, both, for protection of the oppressed and for promotion of national unity and solidarity."
Importance of Uniform civil Code
· Uniform Civil Code will in the long run ensure Equality. Also, UCC will help to promote Gender equality.
· It will lead to national integration and draw minorities into the mainstream.
· It will encourage communal harmony.
In order to promote the spirit of uniformity of laws and accomplish the objectives enshrined in Art.44 of the Constitution, the following suggestions need immediate consideration:
· A progressive and broadminded outlook is needed among the people to understand the spirit of such code. For this, education, awareness and sensitization programmes must be taken up.
· The Uniform Civil Code should act in the best interest of all the religions.
· A committee of eminent jurists should be considered to maintain uniformity and care must be taken not to hurt the sentiments of any particular community.
Verifying, please be patient.